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AGB

General Terms and Conditions of Business of Speth GmbH & Co. KG

 

1. General – area of applicability

    • Our General Terms and Conditions of Business shall apply exclusively; we do not recognize contradictory conditions of the customer that differ from our own General Terms and Conditions of Business until we have explicitly approved their validity in writing. Our General Terms and Conditions of Business shall also apply if we make the delivery to the customer without reservations in the knowledge that there are contradictory conditions or conditions of the customer that differ from our General Terms and Conditions of Business.
    • All agreements that are made between us and the customer for the purpose of the execution of this contract are included in writing in this contract.
    • Our General Terms and Conditions of Business shall only apply with respect to companies within the meaning of section 310 para. 1 of the German BGB [Civil Code].

 

2. Quotation – quotation documents

    • If the order is to be qualified as a quotation or tender within the meaning of section 145 of the German BGB [Civil Code], we can accept this with 2 (two) weeks.
    • We reserve all copyrights and intellectual property rights to illustrations, drawings, calculations and other documents. This also applies to written documents that are marked as “confidential.” The customer requires our explicit prior written approval before passing them on to any third parties.

 

3. Prices – terms and conditions of payment

    • If nothing is stated to the contrary in the order confirmation, our prices shall be regarded as “ex factory”, excluding packing and packaging; this will be billed for separately.
    • Value Added Tax at the currently applicable rate is not included in our prices; it is shown separately in the invoice at the rate that is applicable as of the day of billing.
    • The deduction of discount requires special written agreement.
    • If nothing else to the contrary is stated in the order confirmation, the agreed purchase price is due to be paid net (without any deductions) within 30 (thirty) days from the date of the relevant invoice. The legal regulations concerning the consequences of delayed payment shall apply.
    • The customer only has a right to offset payments if his counter-claims have been legally validated, are not disputed or have been recognized by us. Furthermore, he is only entitled to exercise a right of retention to the extent that his counter-claim is grounded on the same contractual basis.

 

4. Delivery time

    • The start of an agreed delivery time presupposes that all the commercial and technical questions had been clarified beforehand between the parties. In addition this is subject to the proviso of correct and on-time delivery to us.
    • Furthermore, compliance with our obligation to deliver presupposes in addition the timely and orderly fulfilment of the obligations of the customer. This includes in particular the provision of all the required official certification or approvals and the making of the agreed advance payments. We reserve the right to defence of non-performance of the contract.
    • If the customer defaults in accepting delivery of the goods or negligently infringes other obligations to cooperate, then in such a case we are entitled to request that any damages incurred are made good, this including any additional costs incurred as a result. We reserve the right to make claims or to exercise rights going beyond this.
    • If the preconditions of para (3) above apply, the risk of an accidental decline or an accidental worsening of the item being bought shall be transferred to the customer at the point in time at which the latter has gone into default in accepting delivery of the goods or into debt.
    • We are liable on the basis of the applicable regulations as long as the underlying purchase contract is a firm deal within the meaning of section 286 para. 2 No. 4 of the German BGB [Civil Code] or of section 376 of the German HGB [Commercial Code]. We are also liable on the basis of the regulations if as the consequence of a delay in delivery for reasons for which we are to blame and the customer is therefore entitled to make valid his interest in further fulfilment of the contract has fallen into discontinuance.
    • We are liable in addition on the basis of the legal regulations if the delay in delivery is due to an infringement of the contact resulting from malice aforethought or gross negligence for which we are responsible; we are also liable here for the actions of our representatives or parties assisting in fulfilment of the contract. If the delay in delivery is due to an infringement of the contact resulting from malice aforethought or gross negligence for which we are responsible, our liability to pay damages to make good is to be limited to the typical kind of damage that occurs and could be predicted.
    • We are also liable on the basis of the legal regulations if the delay in delivery for which we a responsible is due to the culpable infringement of a significant contractual obligation; however, in this case our liability to pay damages to make good is to be limited to the typical kind of damage that occurs and could be predicted.
    • Otherwise we are liable in the event of a delay in delivery for each completed week of delay as part of a lump sum-based compensation for delay amounting to 3 % of the delivery value, but to a maximum of not more than 15 % of the delivery value.
    • The customer retains the right to further claims and rights under law.

 

5. Transfer of risk – transport insurance

    • If nothing agreed to the contrary in the order confirmation, the delivery is to be agreed as “ex factory.”
    • If the customer wishes, we can cover the delivery with transport insurance; any costs so incurred are to be borne by the customer.

 

6. Liability for defects

    • Claims made by the customer regarding defects presuppose that these are being made in due order in accordance with section 377 of the German HGB [Civil Code] concerning the obligations owed regarding following-up and the lodging of complaints.
    • If a defect is found in the item sold, the customer at his choice is entitled to retrospective fulfilment on the form of making good the defect or to delivery of a new item that is free of defects. In the event of making good the defect or making a substitute delivery we are required to bear all the costs incurred as a result of this retrospective fulfilment and especially all transport, working and material costs if they are not increased due to the item sold having been brought to a place other than the specified place of fulfilment.
    • If this retrospective fulfilment fails, the customer is entitled at his choice to either withdraw or request a reduction.
    • We are liable on the basis of the applicable legal regulations to the extent that the customer can make valid claims for damages due to malice aforethought or gross negligence on our part, and this also including malice aforethought or gross negligence on the part of our representatives or parties assisting in fulfilment of the contract. If we have not intentionally and culpably infringed the contract, our liability to pay damages to make good is to be limited to the typical kind of damage that occurs and could be predicted.
    • We are liable on the basis of the applicable legal regulations to the extent that we intentionally and culpably infringed an obligation under the contract; in this case as well our liability to pay damages to make good is also to be limited to the typical kind of damage that occurs and could be predicted.
    • Our liability for culpable injury to life or limb or health remains unaffected, and this also applies to compulsory liability under the Product Liability Law.
    • Liability is hereby excluded if nothing has been regulated to the contrary concerning the above.
    • Claims regarding defects shall expire after 12 (twelve) months, calculated from the time of transfer of the risk.
    • The expiry period in the event of recourse concerning the delivery in accordance with sections 478 and 479 of the German HGB [Civil Code] shall be 5 (five) years, calculated from the time of delivery of the defective item.

 

7. Joint and several liability

    • Any liability concerning the payment of damages going further than that covered in section 6 is hereby excluded, regardless of the legal nature of the claims being made at law. This applies in particular to claims for damages arising from indebtedness at the time of conclusion of the contract, from other infringement of contractual obligations or due to delictual claims for the making good of damage to assets in accordance with section 823 of the German HGB [Civil Code].
    • To the extent that that liability for making good any damage has been excluded or restricted for our parts, this shall also apply to any personal for making good any damage on the part of our employees, staff, representatives and parties assisting in fulfilment of the contract.

 

8. Reservation of proprietary rights

    • We reserve title of ownership to the item sold until all payments due under the delivery contract have been made. We are entitled to take back the item sold in the event of actions contrary to the contract by the customer, and in particular relating to any delays in payment. There is no withdrawal from the contract if we take back the sold item unless we have explicitly stated this in writing. A withdrawal from the contract is always implicit if the sold item is attached. We are authorized to resell the sold item after taking it back and the proceeds from this reselling are to be used to settle against the liabilities of the customer after deducting any appropriate costs incurred in this reselling.
    • The customer is required to handle the sold item with due care; in particular, he is required to insure it adequately on the basis of the new value against damage from fire, water and theft. If any maintenance and inspection work is required, the customer must carry this out at the appropriate times at his own expense.
    • The customer is required to inform us immediately in writing so that we can take legal action in accordance with section 771 of the German ZPO [Code of Civil Procedure] in the event of third parties attaching or otherwise attempting to seize the sold item. If the third party is not in a position to reimburse us for the legal and extralegal costs incurred due to legal action in accordance with section 771 of the German ZPO [Code of Civil Procedure], then the customer shall be liable for any financial losses that we have incurred as a result.
    • The customer is entitled to resell the item sold in the course of regular business; however, he shall assign to us from then on all claims in the amount of the final invoiced amount (including VAT as applicable) to meet our claim that he has incurred through the reselling with respect to his buyers or third parties and this regardless of whether the sold item was resold without or after further processing. The customer continues to be authorized to do this to enable the claim to be settled even after the assignment. Our authorization to settle the claim ourselves shall remain unaffected. However, we undertake not the settle the claim ourselves as long as the customer meets his financial obligations to us out of the incoming proceeds, if he does not fall behind on his payments, and in particular as long as he has not made an application to open proceedings for insolvency or compounding or is affected by a stoppage of payments. If this is the case, we can then require that the customer informs us of the assigned claims and who he owes money to, all the details that are required to collect the money, that he gives us the associated documents and informs the debtors (third parties) of the assignment.
    • Any processing or conversion of the sold item by the customer is always reserved to be done by us. If the sold item is processed together with other objects that do not belong to us, we shall then acquire joint ownership in the new item in relation to the value of the sold item (amount of the final invoice, including VAT) compared with the other processed objects at the time of the processing. In general, the same shall apply for the item that arises as a result of the processing as for the sold item that had been supplied with retention of ownership.
    • If the sold item is inseparably mixed together with other objects that do not belong to us, we shall then acquire joint ownership in the new item in relation to the value of the sold item (amount of the final invoice, including VAT) compared with the other mixed objects at the time of the mixing. If the mixing is done in such a way that the item of the customer can be regarded as the main item, it shall then be taken as agreed that the customer transfers joint ownership to us on a proportional basis. The customer shall then grant us the sole ownership or joint ownership that has arisen as a result.
    • The customer shall also assign to us the claims to secure our claim against him that have arisen through the connection of the sold item with a piece of real estate against a third party.
    • We undertake to release at the request of the customer the sureties given to us once the conversion value of our sureties exceeds that of the claims to be secured by more than 10 %; the selection of the sureties is to be released is our responsibility.

 

9. Court of law – place of fulfilment

    • If the customer is a businessman, our registered business address is our court of law; however, we are also entitled to take legal action against the customer at the place of his own residential address.
    • The law of the Federal Republic of Germany shall apply. UN commercial law shall have no validity.
    • If nothing agreed to the contrary in the order confirmation, our registered business address is the place of fulfilment.
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